Pizarro v State Transit Authority [2014] NSWIRComm 1019

Industrial Relations Commission New South Wales Medium Neutral Citation: Pizarro v State Transit Authority [2014] NSWIRComm 1019 Hearing dates: 4 July 2014 Decision date: 18 July 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: 1. The appeal is upheld, but only to the extent set out at Orders 2 and 3 below. 2. The punishment of dismissal is set aside. 3. In the place of the punishment of dismissal, the following punishment is substituted: Mr Pizarro is to be allowed to resign, provided that he gives that resignation within 7 days of the date of this decision. If a resignation is not provided within that time by Mr Pizarro, these three Orders lapse and the punishment of dismissal stands. Catchwords: Public sector disciplinary appeal - dismissal - bus operator - attending to personal business on work time - balance of important personal business and obligations to employer - obligations to employer have primacy in work time - allegation of misleading employer - serious allegations not made out by inference - consideration of punishment - appeal upheld but only as to substitute permission to resign for dismissal Legislation Cited: Industrial Relations Act 1996 ss.89, 98, 100C, 100D Transport Administration (Staff) Regulation 2012 r 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 126 Dunn v Waverley Council [2013] NSWIRComm 1031 Feldman v State Transit Authority [2014] NSWIRComm 1017 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4 Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep). Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20 von Senff v State Transit Authority [2013] NSWIRComm 1013 Category: Principal judgment Parties: Mr O Pizarro (appellant) State Transit Authority NSW (Respondent) Representation: Mr O Pizarro - unrepresented appellant Mr S McLean - respondent File Number(s): IRC 18 of 2014